State of Tennessee v. Austin Kipling Stratton ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1997 SESSION
December 4, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9611-CC-00472
Appellee, )
) CHEATHAM COUNTY
VS. )
) HON. ROBERT E. BURCH,
AUSTIN KIPLING STRATTON, ) JUDGE
)
Appellant. ) (Sale of Cocaine)
FOR THE APPELLANT: FOR THE APPELLEE:
R. N. (BO) TAYLOR (Appeal) JOHN KNOX WALKUP
112 Long Hollow Pike Attorney General and Reporter
Suite 206
Goodlettsville, TN 37072 DARYL J. BRAND
Assistant Attorney General
JAMES M. JOHNSON (Trial Court) 450 James Robertson Parkway
112 Frey Street Nashville, TN 37243-0493
Ashland City, TN 37015-1806
DAN M. ALSOBROOKS
District Attorney General
SUZANNE M. LOCKERT
Assistant District Attorney General
P. O. Box 580
Charlotte, TN 37036-0580
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Defendant, Austin Kipling Stratton, seeks review of his consecutive sentences
totaling twenty (20) years for various drug offenses. The sentences resulted from a
plea of guilty. We find that the notice of appeal was untimely filed, and no relief is
merited under Tenn. R. Crim. P. 35(b). Accordingly, we affirm the judgment of the
trial court.
PROCEDURAL HISTORY
On October 24, 1994, defendant entered a guilty plea to two (2) counts of
selling cocaine, one (1) count of possession of cocaine with intent to sell, and one (1)
count of simple possession of marijuana. On December 16, 1994, the trial court
sentenced him to ten (10) years in the Tennessee Department of Correction on one
(1) count of selling cocaine; ten (10) years consecutive on the possession of cocaine
with intent to sell; six (6) years concurrent on the other count of selling cocaine; and
eleven (11) months, twenty-nine (29) days on the marijuana possession, concurrent,
for an effective sentence of twenty (20) years. He was represented by the same
counsel at plea and sentencing. After the sentencing, second counsel filed a Motion
for New Trial. Before it was heard, present counsel was retained. Counsel
persuaded the trial court to consider the motion for new trial as a Rule 35(b) motion.
After an evidentiary hearing on June 19, 1996, the trial court denied relief. Defendant
filed his notice of appeal on June 28, 1996.
UNTIMELY NOTICE OF APPEAL
Upon pleading guilty and being sentenced, defendant should have filed a
notice of appeal within thirty (30) days after the entry of the judgments. Tenn. R.
App. P. 4(a). Instead, he filed a motion for new trial. Such a motion is not
appropriate after a guilty plea. See State v. McClintock, 732 S.W.2d 268, 271 (Tenn.
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1987). The motion did not toll the thirty-day period. Therefore, the notice of appeal
filed in June 1996 was untimely.
The notice of appeal is not jurisdictional in criminal cases, and its untimely
filing may be waived “in the interest of justice.” Tenn. R. App. P. 4(a). Defendant
was sentenced in December 1994, and the motion for new trial was filed in January
1995. The motion converting the new trial request into a Tenn. R. Crim. P. 35(b)
hearing was not filed and heard until June 1996, some year and a half later. The
record is unclear as to why the delay was so lengthy. We see no reason to waive the
untimely filing in the interest of justice.
We, therefore, will review the denial of the Tenn. R. Crim. P. 35(b) request for
a reduction in the sentence.1
RULE 35 STANDARD OF REVIEW
Tenn. R. Crim. P. 35(b) authorizes a trial judge to reconsider a previously-
imposed sentence and reduce it if such a reduction is “in the interest of justice.”
Tenn. R. Crim. P. 35(b), Advisory Commission Comments. In contrast to the
standard of review applicable to sentencing appeals perfected under Tenn. Code
Ann. § 40-35-401(d), appellate review of Rule 35(b) rulings is governed by the “abuse
of discretion” standard. State v. Irick, 861 S.W.2d 375, 376 (Tenn. Crim. App. 1993).
In addition to the present drug convictions, defendant had prior convictions for
possession of marijuana, possession of drug paraphernalia and felony possession
of marijuana with intent to sell. He was on probation for the latter felony offense
when he committed the drug paraphernalia offense.
Defendant had been doing various drugs for over twenty (20) years and
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We realize the ordinary standard of review of sentences is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). If we had waived the untimely filing of the
notice of appeal, such would have been our standard of review of defendant’s sentences. Even
though we have elected not to waive the untimely filing, we, nevertheless, have examined the
record under the de novo standard with a presumption of correctness. Considering the statutory
guidelines, the sentencing hearing testimony and the entire record, we conclude the trial court
did not err in the imposition of the sentences. Thus, we reach the same conclusion under this
standard of review that we do in reviewing the Tenn. R. Crim. P. 35(b) denial.
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considered himself a drug addict for at least fifteen (15) years. He began selling
drugs in the late 1980's. His employment history was sporadic. He received
significant financial assistance from his mother. It is also apparent he profited greatly
from the sale of drugs over the years even though he used much of this profit to
purchase drugs for personal use.
The defendant conceded that he would travel to Nashville approximately twice
a week and purchase approximately five to seven grams of cocaine for resale.
Although the purchase price approximated $50 per gram, defendant’s resale of the
cocaine was for approximately $50 per half gram. The trial court found that
defendant was a “professional criminal” and “an offender whose record of criminal
activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(1) and (2). Accordingly, the
trial court found that running two of the ten-year sentences consecutively was
appropriate. We agree. The testimony of the defendant supports these findings of
the trial court.
The trial court properly concluded that the defendant had been selling drugs
for a minimum of eight years. The record supports the need to protect society
against further criminal conduct by the defendant, and that the consecutive
sentences are reasonably related to the severity of the offenses committed.
See State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).
In summary, we find no abuse of discretion in the trial court’s refusal to reduce
defendant’s sentences.
Accordingly, the judgment of the trial court is affirmed.
JOE G. RILEY, JUDGE
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CONCUR:
JOE B. JONES, PRESIDING JUDGE
WILLIAM M. BARKER, JUDGE
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